Mr. Speaker, I will be sharing my time with the hon. member for Mississauga South.
This debate is in many respects a reprise of the debate we had in the House on October 7, 1998 on the peacekeeping issue. It enables us to reiterate some points in the evolving constitutional law of parliament.
This government is not the Government of the United States. We are not bound by the United States constitution. The power to make war, to declare war, is within the prerogative power of the executive alone here. Even in the United States undeclared wars, which are the phenomena of our times, are a different constitutional system.
What our government has done is to engage, to submit to the House of Commons any question of the involvement of Canadian Armed Forces in service outside Canada. That is to say, when parliament is in session, we will allow a House debate. When parliament is not in session, a practice which I in fact was the instrument of in the last parliament when I was parliamentary secretary, we will inform the leaders or the porte-parole of the opposition parties of our intention. That is the constitutional law of parliament today. It is part of our conventions and I welcome its reiteration in this case.
The issue that I am addressing myself to is really the issue of international law, the technical base of our involvement, because many of the high policy aspects, the political foreign policy aspects have been already covered.
There are others like Dean Acheson, President Truman's secretary of state, who said that survival of the state is not a matter of law; it is a matter of power. I think most of us would prefer President Kennedy's point that a great state wishes its actions to be in conformity with international law, not merely in terms of the substantive principles but also in terms of the manner of exercise, that the more moderate controls less than force are controlling when they are available.
Our approach to involvement in military operations abroad has without exception been with the United Nations under the United Nations charter. It is our great foreign minister and later Prime Minister Lester Pearson who developed the concept of UN peacekeeping. It was a notion implicit in chapter 6 of the charter as drafted, but until the Suez war it was not an actuality. As has been said in this debate, it involves the interposition of unarmed forces between combatants who normally have already agreed to cease hostilities and want a face-saving way out of that.
The gap between peacekeeping in chapters 6 and 7 of the charter is a very large one. Chapter 7, the imposition of force, gets into the areas that are under interdiction in the United Nations charter itself. The principle of the non-use of force, which is one of the imperative principles of the United Nations enshrined in one of the opening sections, article 2(4) of the charter, is also the key to chapter 7 of the charter. The use of force is outlawed except in the limited situation of self-defence which is strictly defined and in accordance with United Nations practice must be authorized by UN Security Council resolutions.
It is a fact that even in operations that have been strictly chapter 7 operations, for example the original gulf war in 1990-91 where the authority was security council umbrella resolutions, some very general and very many of them under which the United Nations command force operated, there was no direct involvement of Canadian forces in armed military offensive action. Ours was an ancillary role.
This was true again in the activities in 1996 in which we committed ourselves but in which we were not directly engaged. Ours was an ancillary, supporting role. We ourselves have been aware of the difficulty of legal definition and of establishing a legal base when we get into offensive armed military operations.
The issue of regional organizations has been raised. It is true that the legal justification or raison d'être of regional military organizations today comes from the United Nations today and only from the United Nations charter. They cannot exceed the mandate of the United Nations charter. They cannot exceed or transgress the stipulations limiting the use of force which are established in the charter.
In a discussion with a European diplomat in recent days I talked about the issue of whether NATO itself, as a regional security organization, could not give a contractual style legal justification within its region. The problem with that would be within Europe itself. This would exclude the strangers to Europe, and I use that in the geographical sense, Canada and the United States. For our purposes the security council is our source of power.
We are aware of the limitations in article 27(3), the veto power given to the big powers. We are aware of the possibility of a wilful or intemperate use of the veto power to obstruct the primary peacekeeping role of the United Nations. As the member for Beauharnois—Salaberry reminded himself, that was overcome by the uniting for peace resolution in which it was established quite clearly that the UN general assembly could fill the gap.
The case of Nicaragua and the United States establishes that the United Nations does not cover the whole field of international law. There remains the area of customary international law. This is perhaps the most interesting area of international law because it is in the new concept of international humanitarian law. Humanitarian intervention is given a role more noble and more altruistic than its 19th century essentially colonialist application by European and other powers.
It is in this area in which there is not much doctrine—there is certainly no jurisprudence constante in the sense of court decisions—that I think the future lies. It is perhaps best there. If we have reached a situation where common humanity cries out for intervention, that is where the direction for support should be placed.
My advice is to rely on the security council resolution and a recent one where possible, but the new norms of the new international law are there and they have a habit, the new customary law, of galloping along to meet new realities.